Court to decide if polygamy laws conflict with rights charter

Canada’s anti-polygamy laws are relics of a bygone era when “Christian norms and values were deemed appropriate,” a British Columbia Supreme Court judge will hear during a much-anticipated constitutional reference hearing that begins on Monday.

Such values are outdated and conflict with today’s multicultural attitudes and with Canada’s Charter of Rights and Freedoms. So argues Vancouver lawyer George Macintosh, appointed to challenge this country’s 120-year-old polygamy ban. The Charter and the ban are irreconcilable, he says.

Not at all, insist counsel representing the Attorneys General of Canada and of B.C. And besides, the latter intends to warn Chief Justice Robert Bauman, decriminalizing serial marriage will inevitably lead to an “influx of polygamist families who are presently barred from the country,” including “immigrants from Muslim countries and African cultures.”

These are the broad strokes, outlined in opening statements and filed in court before the special hearing, which Mr. Macintosh describes as “the first cousin to a trial.”

Section 293 of the Criminal Code is seriously flawed, he will argue. Is it even valid?

The challenge springs from B.C.’s trouble with Bountiful, the fundamentalist Mormon community deep in the province’s interior, where polygamy has been practised, virtually unfettered, for decades.

In Bountiful, men have taken multiple wives, in some cases dozens of them, including girls under the age of 16. In Bountiful, the B.C. government has had a longstanding problem.

Polygamy is definitely illegal in Canada. But rarely — only twice, in fact — has the law ever been successfully applied. And never in Bountiful.

Last year, the province tried and failed to prosecute a pair of Bountiful’s leaders, both of them practising polygamists. James Oler and Winston Blackmore control competing fundamentalist Mormon factions that divide the community of 1,000.

But their charges were quashed in September 2009 by another B.C. Supreme Court justice, on the grounds that the province’s Attorney General had earlier lacked authority to seek a charge recommendation from a special prosecutor.

The province had already sought recommendations from two special prosecutors; both had replied that charges might not stick.

Rather than drop the matter, the province settled on a court “reference” to determine the law’s validity. In a reference, opposing positions are put forward, usually before an appellate court that examines matters narrowly confined to law. This case was put before a lower court, so that raw evidence can be heard.

And there will be a lot of it. Forty binders of evidence will be stacked inside a downtown Vancouver courtroom on Monday. On one side of the room will sit lawyers for the Attorneys General. On the other will sit Mr. Macintosh, acting as Amicus Curiae, or “friend of the court.” It’s his job to argue that Section 293 is not consistent with Canada’s Charter.

He will also defend the interests of four interveners in the matter, parties with intimate concerns for the outcome. They include the Fundamentalist Church of Jesus Christ of Latter Day Saints (FLDS), the religious organization that Mr. Oler represents.

A number of FLDS women from Bountiful will appear. The court has agreed to a publication ban request; the women may not be identified, and they will be allowed to testify from behind a screen. They have already filed affidavits with the court that describe their happiness with polygamous life, and how it is a requirement of their particular faith.

Mr. Oler’s leadership rival at Bountiful, Winston Blackmore, has chosen not to participate in the case.

A total of 11 interveners will represent both sides of the debate. They make an eclectic lot. Among the groups challenging the law is it stands is the Canadian Polyamory Advocacy Association, which supports the practice of having multiple relationships. It has filed supporting affidavits in which middle-aged members extol the virtues of sharing their bedrooms with more than one other. One polyamorist insists that her teenaged children don’t mind her two-male arrangement at all.

Intervening on the opposite side are groups including the Catholic Organization for Life and Family, the B.C. Teachers’ Federation and REAL Women of Canada. The Attorneys General have also retained a number of experts to argue that polygamy causes intolerable harm. In its opening statement to the court, filed earlier this month, the Attorney General of Canada presented this bleak picture:

Children of polygamous marriages, meanwhile, “experience lower levels of socioeconomic status, reduced academic achievement, and psychological problems … Early marriage and pregnancy have a number of negative, serious, long-term consequences on girls …”

That may be, says Mr. Macintosh, the Amicus Curiae, but he counters that similar harm can occur in monogamous marriages as well.

Besides arguing that the polygamy ban was originally “aimed at defending a Christian view of proper family life,” and that this view is now obsolete, Mr. Macintosh argues that multiple-marriage can actually benefit practitioners.

One of his experts is Mc-Gill University law professor Angela Campbell; she has made close study of Bountiful women and has recently made research field trips to the community, where she has interviewed dozens of residents, almost all of whom belong to the unrepresented Blackmore faction.

To be sure, these women endure hardships, she writes, but their extent may be exaggerated, particularly in mainstream media and feminist academia. Children of polygamists have been at risk, particularly in the past, she concedes; however, Prof. Campbell notes the practice of Bountiful men taking child brides, girls under the age of legal consent, seems to be a thing of past, albeit not too distant.

Moreover, it would be a mistake “to believe that all polygamous marriages are abusive,” Prof. Campbell asserts in an affidavit she made for the court.

“Women from Bountiful have spoken out publicly in support of their lifestyle, firmly maintaining that they have made enlightened and active choices in regard to marriage and family relationships and responsibilities.”

“Sister wives” help one another and keep a firm grip on household finances, among other things. The “guy” in the relationship, one Bountiful woman told Prof. Campbell, just goes out and works.

But the Attorney General of B.C. points out that its argument “does not rely on proof that the negative experiences of wives and children of polygamy are present in every case.”

In his opening statement, Crown lawyer Craig Jones “concedes there can be purely consensual, adult polygamy that involves no discernible harm to the participants (and presumably confers some advantages upon them).”

However, he adds, “the harms do exist, and the possibility that the vulnerable persons will suffer harm from an activity even if many or most do not is sufficient to permit Parliament to invoke the criminal law power.”

And he adds this: “The fact that socially imposed monogamy is so deeply imbedded in the moral fabric of our society cannot be dismissed lightly.”

Even if it is an old-fashioned notion.

The hearing is scheduled to finish at the end of January.

bhutchinson@nationalpost.com

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What the courts say

From the opening statement of the court-appointed Amicus Curiae

“The Amicus will submit that the true objective of s. 293 is to defend a mainstream Christian definition of marriage and to compel Mormons and Aboriginals into adopting that definition. Such an objective is contrary to Charter values and is not one that is pressing and substantial in a free and democratic society.”

“The fact that ‘socially imposed monogamy is so deeply imbedded in the moral fabric of our society’ is not an explanation for why the law must continue to enforce that norm to the exclusion of all others. The heterosexual nature of marriage was also ‘deeply embedded’ in our society, but nonetheless the law’s enforcement of that exclusive definition of marriage was discriminatory.”

“The criminalization of polygamy has the perverse effect of making communities in which it is practised more insular, with the result that there is less interaction with the authorities. That is, the criminalization of polygamy renders real harms that might arise in those relationships more difficult to target and prosecute.”

“Section 293 is not aimed at protecting women and children from commodification and consequential exploitation, as the [Attorney General of British Columbia] alleges. To the contrary, s. 293 renders criminal all participants in polygamy, be they male or female.”

From the opening statement of the Attorney General of British Columbia

“Numerically speaking, the threat presented by polygamy does not arise from the spread of fundamentalist Mormonism, but rather in immigrant populations, including immigrants from Muslim countries and African cultures where polygamy is either legally or culturally condoned.”

“If it were simple prudishness motivating the ban, then why should it not include orgies, which would have been no less an affront to Victorian sensibilities?”

“The evidence in this reference is that there are four categories of harm that arise from polygamy, which, taken together, are significant and substantial: harms to the moral fabric and democratic essence of society: harms to the value of equality and to the vital interests of vulnerable groups; harms to society generally through polygamy’s impact on the sexualization of young girls and the increased incidence of antisocial behaviour and crime; and harms to many of the participants in polygamous relationships and their children.”

“The participants arguing that s. 293 is unconstitutional urge the court to make Canada the only Western national to decriminalize polygamy.”From the opening statement of the Attorney General of Canada